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An Angel for Open Source

by Richard Koman

My first assignment at O'Reilly was to look into a Clinton Administration proposal to strengthen copyright protections for the cyberspace future. The architect of Clinton's plan was Bruce Lehman, and in my mind, Lehman got what he asked for in the Digital Millennium Copyright Act. One of the leading voices against what Lehman asked for was Pamela Samuelson, a professor of law at the University of California Berkeley. That was back in 1993, and Samuelson has been a tireless advocate for the public's interest in an unfettered Internet, a robust public domain, and fair use laws.

Now she and her husband, along with the Markle Foundation and Mitch Kapor's foundation, have endowed the Samuelson Law, Technology, and Public Policy Clinic at Berkeley's Boalt School of Law. A major focus for the high-tech portion of the clinic will be on supporting open source software development in courts, legislatures, and regulatory agencies.

For a first-hand look at how the clinic and the open source community can work together, attend the birds of a feather session on Tuesday, July 23, at the O'Reilly Open Source Convention, where clinic Director Deirdre Mulligan and Fellow Jennifer Urban will introduce the clinic and listen to what legal services the community wants.

We asked Samuelson to discuss the clinic's interest in open source issues. As she describes it, the clinic will represent organizations that have some stake in a legislative, litigation, or regulatory matter, and provide some assistance, anything from "filing an amicus brief in a case or submitting testimony; writing a report about something; or litigating a case, or defending a case."

Richard Koman: What exactly is the clinic's interest in open source?

Pam Samuelson: We thought the open source community was a good example of an interest that is well-organized in many respects and yet, when it comes to legislation or litigation, it's hard for people doing volunteer open source projects to be able to hire a lawyer. So the clinic is available to represent members of the open source community. Sometimes that might involve drafting licenses, or it might be writing an amicus brief, for instance, in the case of DVD-CCA v. Bunner, which is currently before the California Supreme Court.

Koman: Can you just walk us through that case in more detail?

Samuelson: Sure. The case is called DVD Copy Control Association v. Bunner, and it's probably pretty well known. It grows out of the posting of a computer program named DeCSS by Jon Johansen on Bunner's Web site and the Web sites of other people. The DVD Copy Control Association says that they have trade secrecy interests in CSS -- the content scramble system that they use to protect DVD movies -- and that CSS is a trade secret that Jon Johansen misappropriated when he reverse-engineered the CSS in violation of a shrink-wrap license.

The theory is that Bunner knew or should have known that DeCSS was the product of trade secrecy misappropriation and therefore that Bunner is liable for trade secrecy misappropriation. The trial court issued a preliminary injunction agreeing that DVD-CCA had a trade secret, and that it had been misappropriated by the reverse engineering in violation of shrink-wrap license. The Court of Appeals reversed on First Amendment grounds and this case is now pending before the California Supreme Court. And I think you can see that the open source community has some interest in whether or not these anti-reverse-engineering clauses -- which are so common in mass-market licenses for software -- are enforceable.

Koman: And so there's a First Amendment question that the State Supreme Court will resolve. Are you recommending that the open source community ask for your help in drafting an amicus in this case?

Samuelson: I'm giving an example of something that wouldn't necessarily have come to the attention of particular open source developers, but that has pretty profound implications for the open source community. What the clinic is trying to do is open a conversation with some people in the open source community so that if and when we spot a case or a piece of legislation that might have implications for the open source community, we're able to do something to represent the open source community's interests in this area.

Koman: And they haven't been particularly able to take part in the legislative or legal discussions very well.

Samuelson: There's no reason why they can't. It's just that, unlike the companies that make proprietary software, it's hard to afford your own lobbyist.

Koman: And by their very nature, they're not in an organization where they can send something off to legal. And so what has been the response of the folks you've talked to?

Samuelson: Well, we had a very terrific meeting with Tim O'Reilly and with Mitch Kapor. Mitch, as you probably know, has an open source application foundation, and we've been talking with Mitch about some things that the clinic might do for the open source community. One idea that Tim and Mitch were excited about was the idea of amicus briefs on behalf of open source groups.

In that particular case, all the briefs are about to go in, so it may be too late to represent the open source community on that one, but things like this come up pretty often, so it's really a good idea to try to have some sort of ongoing relationship so that we can have a dialogue about what things are coming up.

Another thing that [Tim and Mitch] were very excited about was the prospect of some open source community participation in legislative efforts to improve the patent re-examination system. This is something that would be beneficial for open source developers if they think that they know of prior art that would defeat a patent. Right now, there is too little interaction between the person who asks for a patent to be re-examined in order to be able to challenge it, and a patent office that is going to conduct the re-examination. There's legislation pending right now that would make the re-exam process more like a hearing, and that would be beneficial, I think, to the open source community.

So one of the things that the clinic could do is essentially write a letter or a proposal that either supports the legislation or says, well, in addition to the things that the bill already does, it should do this, this, and this. This is a really low-cost way of trying to challenge patents, by comparison with the litigation system, which, as you know, is a really, really expensive and difficult process for the open source developer who wants to challenge a patent.

The third project that we got pretty excited about was the idea of having some sort of Web site where we would annotate open source licenses, so that people could have a clearer sense about what are the implications of some of the terms of the licenses. Open source licenses are probably more readable than most software licenses, but there is still some boilerplate that people use in their licenses that they may not even really understand. So, if there were a Web site to translate into plain English what some of these terms mean and what some of the questions are regarding whether they're enforceable or not, that might actually be of some benefit to the open source community.

Koman: What is your impression of the commercial software sector using open source licenses or shared source licenses?

Samuelson: Well, one of the reasons I think that this idea of a Web site with annotated "open source licenses" might be a good idea is to help the open source community dispel some of the myths -- so to the extent that Microsoft said X, Y, and Z about open source, the clinic might be able to provide some counter-balancing of the legal principles that might suggest that's wrong. And I think that this is a place where the open source community has done a pretty darn good job, articulating its interests and doing work that it considers to be useful. And I think it has been unfairly disparaged by some of the commercial interests.

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One of the things that the clinic might also do is try to work with the open source community to help refine the message so that the U.S. government would find amenable the idea of using more open source software. Right now there's been some kind of lobbying and pressure on the government not to use open source software, and it seems to me that actually there's a very good set of reasons why the government should use open source software. I'm trying to help refine that message and this involves some legal analysis, because there's some very comprehensive federal acquisition regulations that guide how the government licenses software and other kinds of technical information.

Koman: This is another area where you can take part in the regulation process?

Samuelson: This is another place where we have some expertise that might be helpful in translating concerns that people are raising, and seeing whether they're valid or whether they're, in fact, not valid.

Koman: Are you working at all with the commercial open source vendors?

Samuelson: I have an open mind about doing that. I mean, it seems to me that the commercial open source developers, for example, have the same interest in a better patent re-examination system as the nonprofits do. To the extent that we want to, for example, write an amicus brief on the importance of reverse-engineering to the open source community, it seems to me that commercial open source developers have the same interests as the others. Now, there may be some places where they have somewhat diverging interests, but it doesn't seem to me that the commercial open source people are outside the ken of what we're up to.

Koman: As far as EFF's ability to function as the public interest lobbying group, it seems like your legal and regulatory consulting could really boost their effectiveness.

Samuelson: Well, EFF is doing a lot of really challenging things, and they can't do everything. And they also don't have the same depth of expertise in certain areas, such as intellectual property, as places like Berkeley. And so we've been trying at the clinic to work in conjunction with organizations like EFF, and there are times when the clinic, for example, will write an amicus brief that supports a position that EFF is taking in litigation.

So, for example, in this DVD-CCA v. Bunner case, I've written an amicus brief on behalf of a bunch of law professors and the Computer and Communication Industry Association, which basically argues that the court should affirm that reverse-engineering of a mass-marketed product is a proper means of obtaining a trade secret, and they should disavow the notion that breach of an anti-reverse engineering clause in a mass market license should be enforceable. And that's a brief that I wrote because I believe it. It happens to be a case where EFF is among the counsel for Bunner, and so this is a nice example where the clinic and EFF can kind of work together on certain things.

Koman: In the matter of presentation of the open source message, you mentioned that confusion over different licenses could be addressed by a Web site, and you also talked about improving or fine-tuning the message that gets out to Washington or to the public at large...

Samuelson: And you mentioned, in the mail you sent, that speech by (Rep.) Howard Berman (D-California). That legislation is going to be before Congress this summer. The open source community has some interest in these rules that would affect peer-to-peer networks, and the question is, how is the voice of the peer-to-peer open source developers going to be manifest in Congress? And this is another place where it may be that the High-Tech Clinic can do something to help.

Koman: Right. Basically, Hollywood has Congress' ear, and can make things -- like this Berman bill -- happen relatively quickly.

Samuelson: Well, they are good at getting the legislation that they want introduced, and all too often, they've been able to persuade Congress to pass it. It doesn't seem to me that the Berman bill is going to pass tomorrow, but it is something to watch out for and to be concerned about, and it will certainly have an impact for open source developers.

Koman: And as you mentioned, it's less expensive to succeed at the legislative stage than at the litigation stage.

Samuelson: Well, it may be. That's right. I mean, for example, if we can find somebody to be a good witness to Congress, we can help prepare testimony to argue the open source case. Often, when there's going to be a hearing on something, there's an opportunity for affected industry groups to put together a statement to have included in the record. Deirdre Mulligan, the director of the High-Tech Clinic, is a legislative lawyer. She worked in Washington, D.C., for seven years, for the Center for Democracy and Technology, and she really understands kind of what the legislative process is like and how to intervene and who to talk to and what kinds of documents to prepare that will give you a good shot at getting your message across. And it seems to me that that's something that not all organizations do and frankly, as much as I admire EFF, lobbying is not their strong suit.

Koman: That's an issue. One other issue for me in the open source community is the tendency towards religious extremism, if you will. A mindset and a style that says, you know, there's no role for ownership of code, all code must be completely free and open or it's unusable. For example -- you have a Free Software Foundation mentality on the one hand versus, say, Microsoft's contributions on the other hand, and it seems like one of the problems of the culture is that things get rather extreme relatively quickly, and it's hard to parse the legal language without getting caught up in advocacy and recrimination.

Samuelson: Right. It often seems like a religious war.

Koman: So, do you see that as something that you can help with as a non-developer looking at the license language?

Samuelson: Well, I'd sure like to think so. On the other hand, I've spent enough time talking to people about open source versus free software to know that it's not going to be a rift easily healed. On the other hand, a part of what can be helpful is to have something like this Web site that annotates licenses and helps people understand -- you know, what are the differences between and among the licenses? And it may be that certain things are pretty starkly different, but maybe for other things, this license says it this way and that license says it that way, but in fact they more or less mean the same thing. And it would be helpful, I think. And maybe it would help to reduce some of the tension if that information was more clearly available.

Koman: Has there been any legal clarity on some of the requirements of open source licenses? Simply, does anything happen to you if you sign a license but then violate it?

Samuelson: There's certainly no cases of which I am aware where there's been a decision that either enforced or declined to enforce an open source license, and in many of the cases that could come up there's been kind of a negotiated settlement. But there are still some pretty substantial open questions about certain aspects of open source licenses. I mean, one of the standard rules of contract law is that a contract binds you and me, but it doesn't necessarily bind the whole world, and one of the things that open source licenses try to do is bind not only you and me but kind of everyone else in the world, and so far as I know that's not been legally challenged yet. But there are some significant issues about its portability, and I think there are some good arguments one way or the other, but it is an example of something that is not entirely clear.

Koman: So would you see going forward the need to shore up some of the more aggressive language in some of the licenses?

Samuelson: No. One of the things that could result from this kind of Web site project might be a kind of best practices, with some examples of best practices of licensing. These licenses may have clauses in them that are not 100 percent absolutely guaranteed enforceable, but have language that is more likely than similar language in some other licenses to be upheld. This is again a way to take advantage of the expertise of the very talented law students that we have. And they are excited about open source, and they think the projects in the open source area are really terrific, and so it's a place where we have the talent and energy -- the students can actually get credit for essentially lawyering on behalf of these public interest organizations, and the public interest organizations then get some representation that they couldn't have otherwise had, so this is one of those rare situations where you have win-win.

Koman: How many students are involved in the clinic?

Samuelson: About ten a semester. Some of them take it for more than one semester, some of them only take it for a semester. Sometimes it varies a little bit, but probably no more than twelve.

Koman: And open source isn't the only area you're concentrating in.

Samuelson: We do a bunch of other things. We have projects on telephone privacy, and we have some things about digital rights management, and we have a project about some standards-setting in the DRM area. We wrote an amicus brief on behalf of Brewster Kahle's Internet Archives to the U.S. Supreme Court in the Eldredge v. Ashcroft case.

Koman: And I also noticed a project on AIDS in Sri Lanka.

Samuelson: Yeah, isn't that great? This is actually a collaboration between the Human Rights Clinic and the High-Tech Clinic, because the Human Rights Clinic has certain expertise but, gee, the issue about licensing of AIDS medication has intellectual property and high-technology issues associated with it, and so a nice kind of collaboration was able to happen there.

Koman: Finally, what's the mechanism for open source developers and public interest groups to hook up with you?

Samuelson: Well, there will be a birds of a feather session at the O'Reilly Open Source Convention in San Diego, where two of the people from the High-Tech Clinic will come down and just talk about things that are of interest and concern to the open source community. The folks that are coming down are going to have some ideas and suggestions about the kinds of projects that we might try to undertake and see whether that makes sense to people. Apart from that, the clinic is open for business, so if people have projects or have concerns that they want to try to involve the clinic in, then they can contact me or Deirdre Mulligan and we'll see if we can help out.

Richard Koman is a freelancer writer and editor based in Sonoma County, California. He works on SiliconValleyWatcher, ZDNet blogs, and is a regular contributor to the O'Reilly Network.

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